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Defamation

Updated: Feb 20, 2022

Written By -Divya shree Kamana

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Who steals my purse steals trash….

But he that filches from me my good name

Robs me of that which not enriches him

And makes me poor indeed.

- Shakespeare: “Othello”


Reputation isn't what an individual considers himself; it is others' opinion about him. Also, the interest ensured by the law of Defamation is his anxiety that the conduct of others in the public eye to him will not be unfavorably influenced by the litigant's falsehoods. The impact of these falsehoods might be that the offended party may lose his current employment, may not get the other one, may need to forego a magnificent marriage, may lose companions, business, clients, or his feeling of fulfillment. The Law of Defamation protects this Reputation.[1]

Freedom of speech and expression is the very foundation of a democratic society, while a right to reputation is perhaps the most dearly prized property and attribute of a cultured person. It is not a mere caprice of a poet that a good name is far more valuable, greater, and is, therefore, to be preferred than great riches. Indeed, consequently, injury to reputation and character exceeds that of a loss of property.

In India, there is no statutory law of defamation except what is mentioned in Chapter XXI of I.P.C. As far as Civil Defamation is considered, because of the lack of codified law, Common Law and precedents are applied in Indian cases.


Definition :


Salmon & Heuston on the Law of Torts, 20th Edn defined a “Defamatory statement” as under :

“A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society…”

According to the Indian penal code, “Whoever, by words spoken or intended to be read, or by signs, or by visible representations, makes or publishes any imputation concerning any person, intending to harm or knowing or having reasons to believe that such imputation will harm, the reputation of such person, is said to defame that person.”

Kinds of Defamation :

Thus, a statement is said to be defamatory when it injures the reputation of the plaintiff to whom it refers. Under English Law, there are two modes of Defamation. They are Libel and Slander. If a defamatory statement is made in writing, broadcasting, or any other permanent form, then it is called libel. If the defamatory statement is made orally or in any other transient form, it is called Slander. In short, Libel is said to be a written Defamation and Slander, spoken defamation. The ambit of both Libel and Slander changed along with the technology. Nowadays any defamatory statement that is published is called Libel.

It is important to note that libel is actionable per se, but Slander is not actionable per se. It requires proof of damage except in the following cases:

(1) Imputation of a criminal offence.

(2) An accusation of virulent disease.

(3) Imputation against office, profession, trade, or calling.

(4) Imputation of unchastity against a female.


Essentials of Defamation :


For a statement to be considered defamatory, the plaintiff must compulsorily prove the following essentials.

(1) The statement must be defamatory.

(2) It must be referring to the plaintiff.

(3) It must be published that is known to a third party other than the plaintiff.

Defences against Defamation :


If a person is accused of Defamation, he can avail the following defences:


(1) Justification of Truth: “The Law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess.”[2] Justification of truth is a complete defence in Civil defamation charges. Whereas in Criminal action for Defamation, according to sec. 499, I.P.C, mere justification of truth cannot be considered as whole defence, it should also be proved that the imputation was made for the public good.


(2) Fair comment: A fair comment made on matters of Public interest suffices as a good defence against defamation. The following essentials are necessary to avail the defence of Fair Comment.


(i) It must be a comment; In the case of Subhas Chandra Bose, it was held that “Where the distinction between fact and comment is obliterated, there is no existence of fair comment.”[3] Comment means an expression of opinion on certain facts.[4]


(ii) The comment must be fair; All that is required is that the inference from facts truly stated should be fair, that is, one possibly out of many equally or almost equally fair inferences.[5]


(iii) The matter commented upon must be of public interest.


(3) Privilege: In some instances, more importance should be given to Freedom of Speech rather than the plaintiff’s right to reputation. Privilege, or invulnerability, is likewise protection against a case of criticism. Absolute privilege is an old custom-based law privilege that shields individuals from lawmaking bodies from charges of criticism for articulations made "on the floor" of their authoritative bodies, without respect for whether the words are expressed under some basic honesty.


Qualified privilege and absolute privilege: The qualified privilege is typically utilized in situations where the individual imparting the assertion has an obligation or interest to offer the expression. The individual offering the expression should show that the person has offered the expression in compliance with common decency, trusting it to be valid and that the proclamation was made without malice.

Absolute Privilege implies that by such a lawful fiction the law inferable from convincing contemplations of public approach contributes proclamations made upon specific events with exceptional insurance so all articulations made on such events, despite the fact that they might be defamatory, can't be made the topic of the suit in courtrooms and no activity for Defamation will lie in regard of them.[6]

As to Qualified privilege a communication is supposed to be so favored on the off chance that it is made by an individual in the release of some obligation, regardless of whether public or private, of a lawful, good or social character, or having the interest to be secured to an individual who has some interest in receiving it or to ensure that interest. Such interchanges where they are decently justified by any sensible event of exigency are additionally secured for basic comfort and government assistance of the general public. Advantage along these lines dislodges a countervailing guarantee to the assurance of reputation.


(4) Apology: Apology is accessible as protection in activities for criticism against papers and another periodical distribution if the paper embeds an adequate apology and clings to certain different conditions. When there is an apology and an acknowledgment thereof, the litigant can oppose the offended party's suit for repayment for maligning. In any case, there has been no comparable enactment in India. In past decisions, it is been held that regardless of whether the offended party acknowledged an apology and pull out a criminal arraignment for criticism he can in any case sue the respondent in a common suit. If there should be an occurrence of L. D. Jaikwal versus State of Uttar Pradesh.[7]


(5) Consent: Where the respondent has imparted or distributed certain material with the consent of the offended party or offended party himself has welcomed the litigant to rehash the abusive words, the respondent can argue this protection of consent. On the off chance that an individual phones a paper with bogus data about himself, he would not have the option to sue in criticism when the paper distributes it.


Conclusion:


To defame is to assault one's reputation, to deny him of his reasonable name. Defamation is the publication of a false and defamatory assertion regarding another person without worthwhile reason or excuse, whereby he endures injury to his reputation. Defamation Law helps individuals to secure their standing against false and defamatory articulations that plan to hurt the reputation of individuals. Be that as it may, the cases for Defamation shouldn't supplant Freedom of Speech and Expression.

[1] Ratanlal and Dhirajlal, Law Of Torts. [2] (1829) 10 B & C 263 [3] Subhash Chandra Bose v. r. knight & Sons, Air 1929 Cal 69. [4] R.K. Bangia, Law of Torts. [5] Surajmal v. Horniman, AIR 1917 Bom 62. [6] Lachhman v. Pyarchand, AIR 1959 Raj 259. [7] Criminal Law Journal, 1984

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